Martinez as trustee for Martinez HWL Practice Trust as representative of the partners trading as HWL Ebsworth Lawyers v Griffiths as trustee for the Griffiths HWL Practice Trust [2019] NSWCA 310

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Martinez as trustee for Martinez HWL Practice Trust as representative of the partners trading as HWL Ebsworth Lawyers v Griffiths as trustee for the Griffiths HWL Practice Trust [2019] NSWCA 310 Hearing dates: 21 November 2019 Decision date: 17 December 2019 Before: Bell ACJ at [1]; Meagher JA at [2]; Barrett AJA at [66] Decision: 1. Appeal allowed in part. 2. Orders 1 and 2 made by Robb J on 6 June 2019 be set aside. 3. Judgment for the respondent as plaintiff against the appellant as defendant in the sum of $127,000, together with pre-judgment interest at the rate prescribed in UCPR, r 6.12(8) from 1 September 2015 to 6 June 2019, the latter being the date on which that judgment is to take effect in accordance with UCPR, r 36.4(3). 4. Direct that if the parties cannot agree as to the orders to be made for the costs of the proceedings at first instance and the appeal, they should exchange written submissions, in each case not to exceed 5 pages, and provide those submissions to the Associate to Meagher JA by 5pm on 24 January 2020. Any remaining questions as to costs to be decided on the papers. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – termination – common law – summary dismissal – whether justified because of lack of candour of employed solicitor in dealing with legal precedents of the firm – no question of principle

CONTRACTS – remedies – damages – wrongful termination of contract of employment – assessment of damages – whether and when partners would otherwise have resolved to terminate and whether would have resolved to make payment in lieu of notice – whether opportunity to seek employment whilst serving out notice period lost and compensable as a valuable opportunity Cases Cited: Addis v Gramophone [1909] AC 488 Bartlett v Australia & New Zealand Banking Group Ltd (2016) 92 NSWLR 639; [2016] NSWCA 30 Biotechnology Australia Pty Ltd v Pace (1988) 15 NSWLR 130 Birrell v Australian National Airlines Commission (1984) 5 FCR 447; [1984] FCA 419 Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24 Commonwealth Bank of Australia v Barker (2014) 253 CLR 169; [2014] HCA 32 Delaney v Staples [1992] 1 AC 687 Foran v Wight (1989) 168 CLR 385; [1989] HCA 51 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Hadley v Baxendale (1854) 9 Ex 341; 156 ER 145 Malik v Bank of Credit & Commerce International SA [1998] AC 20 Robinson v Harman (1848) 1 Ex 850; 154 ER 363 at 365 Sanders v Snell (1998) 196 CLR 329; [1998] HCA 64 Shaw v State of New South Wales [2012] NSWCA 102; (2012) 219 IR 87 Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12 TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130 The Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54 Willis Australia Group Services Pty Ltd v Mitchell-Innes [2015] NSWCA 381 Texts Cited: J D Heydon, Heydon on Contract (2019, Lawbook Co) Category: Principal judgment Parties: Martinez as trustee for Martinez HWL Practice Trust as representative of the partners trading as HWL Ebsworth Lawyers (appellant) Griffiths as trustee for the Griffiths HWL Practice Trust (respondent) Representation: Counsel: B W Walker SC / T Dixon (appellant) S R Donaldson SC / J Williams (respondent)